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This Week at the SCC (14/12/2012)

Posted in Aboriginal, Communications, Conflict of Laws, Health, Intellectual Property, Labour and Employment, Media, Professions, Regulatory, This Week at the SCC
Brandon Kain

Cases Decided

The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.

In Reference re Broadcasting Regulatory Policy CRTC 2010-167 and Broadcasting Order CRTC 2010-168, 2012 SCC 68, Rothstein J. for the majority of the Court held that the Canadian Radio-television and Telecommunications Commission (“CRTC”) lacked the jurisdiction to create a market-based ”value for signal” regime.  The proposed regime would have enabled private local television stations (“broadcasters”) to negotiate direct compensation for the retransmission of their signals by broadcast distribution undertakings (“BDUs”), such as cable and satellite companies, and to prohibit the BDUs from retransmitting their signals if the negotiations were unsuccessful.  The Court observed that the Broadcasting Act did not explicitly confer the jurisdiction to create this regime upon the CRTC, and found that the jurisdiction could not be derived from the general policy objectives of the CRTC in s. 3 of the Broadcasting Act, nor from other broadly-worded provisions in the Broadcasting Act allowing the CRTC to make regulations “respecting such other matters as it deems necessary for the furtherance of its objects” (s. 10(1)(k)) or to impose such terms and conditions when issuing licences “as the Commission deems appropriate for the implementation of the broadcasting policy set out in subsection 3(1)” (s. 9(1)(b)(i)).  The Court also held that the jurisdiction asserted by the CRTC would conflict with the Copyright Act, which only permits broadcasters to prohibit other broadcasters as opposed to BDUs from simultaneously retransmitting their signals (s. 21(1)(c)), and which creates an exception to copyright infringement for the simultaneous retransmission by BDUs of a “work” carried in local signals (s. 31(2)).

The Broadcasting Reference will stand as an important precedent in any litigation where a regulator seeks to assert a jurisdiction that is not derived from the specific language of its enabling statute, but inferentially from general statutory provisions (e.g., purpose, regulation-making or licensing clauses).  The Court’s ruling will also be particularly significant in the area of communications regulation, since it imposes definite limits upon the powers of the CRTC, and confirms that those powers cannot conflict with the Copyright Act.

Cases Heard

The Court heard arguments in three cases of interest this week, and reserved judgment in each.

The first case is an appeal from Rasouli v. Sunnybrook Health Sciences Centre, 2011 ONCA 482.  It involves whether physicians, who have determined that current life-sustaining treatment administered to a patient in a permanent vegetative state is no longer medically indicated, may withdraw that treatment without obtaining either the consent of the patient’s substitute decision-maker or the permission of the Consent and Capacity Board under Ontario’s Health Care Consent Act, 1996.  The oral arguments before the Court may be viewed here.

The second case, an appeal from Moulton Contracting Ltd. v. Behn, 2011 BCCA 311, concerns the defences which individual members of a First Nation can raise to a claim for damages by a logging company.  The claim arose out of their decision to impede the company’s entry onto their First Nation’s territory, for the purpose of logging areas in relation to which the provincial Crown gave the company timber sale licences and a road permit.  The issues for the Court are whether the individual members of the First Nation, as opposed to the First Nation itself, have standing to assert that the Crown granted the licences and permit in violation of the First Nation’s treaty and consultation rights, and if so, whether this assertion is an impermissible collateral attack upon the validity of these instruments.  We discussed the Moulton case in a previous post.  The oral arguments before the Court may be viewed here.

The third case of interest heard by the Court this week is an appeal from Waterman v. IBM Canada Limited, 2011 BCCA 337.  The appeal asks whether pension benefits paid to an employee alleged to have been wrongfully dismissed, during the 20 month period which should have constituted the notice period provided by the employer, are to be deducted from the wrongful dismissal damages awarded to the employee.

Leave Applications Decided

The Court did not grant leave to appeal in any cases this week, but refused leave in two cases of interest:

1) 299 Burrard Residential Limited Partnership v. Essalat, 2012 BCCA 271, in which the B.C. Court of Appeal found that a disclosure statement given by a developer to a strata unit purchaser contained a “misrepresentation” under B.C.’s Real Estate Development Marketing Act, in the form of an inaccurate closing date, which rendered the agreement of purchase unenforceable and precluded the developer from obtaining forfeiture of the purchaser’s deposit when the latter refused to close.

2) Canadian Office and Professional Employees Union v. Yellow Pages Group Company, 2012 ONCA 448, where the Ontario Court of Appeal held that an employer wrongfully dismissed a 20-year unionized employee, when it imposed the penalty of termination upon him for failing to provide medical information about his short-term disability leave within the time-line set by the employer.